Monday, May 19, 2008

Well, it's been over a month and I am sure noone really missed me. But even if you didn't miss me, I'm back for now. Here is this week's chaburah.

In this weeks parsha we learn out the issur of on'as devarim. The Rishonim discuss exactly what is included in this issur. For example, the Seforno includes the issur of geneivas da'as in this issur. The Chinuch explains that the issur is to cause someone tzar. In the sefer Pischei Choshen (on dinei Choshen Mishpat by Rav Ya'akov Blau) he writes that included in the issur of ona'as devarim is the issur of gezel sheina-waking someone up when they are sleeping. The sevara behind this is that ona'as devarim is the issur of causing someone tza'ar and when you wake someone up you cause him tza'ar therefore waking someone up is ona'as devarim.

The question is, why is it called "gezel sheina"-is there an actual issur of stealing and also how do the poskim view this issur.

1) The Shevet Levi (Rav Wosner) writes that it can't be a real issur of gezeilah. You are only chayav for gezeila if you cause someone a loss and here you are not causing anyone a loss. He does say that by waking someone up, you take away an intangible benefit from someone (this is my interpertation of his words, his actual loshon is "m'vateil to'eles v'tovas chaveiro). He says we see that this is an issur from the gemara in Bava Basra 20b and Choshen Mishpat Siman 156. I am not sure what he is referring to since I don't see any mention of there being an issur.

2) Rav Menashe Klein in Mishneh Halachos writes in a few places why it is called gezel sheina. In Chelek 12 Siman 443 he writes that the m'kor for gezel sheina comes from a gemara in Berochs 13a that says that Rav Nachman told his servant to be m'tza'eir him and wake him up in order to read the firsty posuk of Shema. We see from here that to wake someone up is called causing someone pain. Rav Menashe Klein then brings a gemara in Sanhedrin 59 that the ikkar inyan of gezel is because you are causing someone pain. Also, there is a tosefta in Babab Kama (3:7) that lists geneivas da'as as a type of geneiva even though you are not causing someone a loss. So you see you don't need to cause a loss to be called gezeila.The truth is I am not sure if Rav Menashe Klein is trying to say that gezel sheina is real gezel or if he is just trying to explain why the term "gezel sheina" is used. The reason for my safeik is because in Chelek 14 Siman 199 he actually has a teshuva to Rav Wosner in which he writes that the ikkar issur of gezel sheina is m'dinei hezek and not gezel.

3) I found an article by Rav Zalman Nechemiah Goldberg in which he writes that gezel sheina is a hezek m'din tza'ar. Furtehrmore, he writes that a person can take someone to beis din for nezek, tza'ar, reepoi , sheves and boshes. Since waking someone up is a hezek of tza'ar, you could really take someone to beis din over it. However, b'zman hazeh we don't go to court over tza'a'r so you couldn't do it today. Also, it is only if you wake someone directly, making a loud noise and waking someone up is just a grama and you are patur.

4) I was told that Rav Chaim Kanievsky says it is assur m'din v'ahavata l'reiacha komocha.

Whether it is ever muttar to wake someone up, like for a minyan, will be discussed later.